Much has been written about the concept of implicit bias. The term suggests that we can act on the basis of prejudice and stereotypes without consciously intending to do so. While some of the research has focused on consumer products and political values, the research on implicit bias directed toward members of social stigmatized groups has recently drawn attention in popular media. Given less attention in the media, though, is that research has shown only a small to medium correlation between the measures of implicit bias and actual behavior.

Nonetheless, it is appropriate to consider if mediators hold any bias and if that in any way impacts the sessions they preside over. 

Mediation ethical standards clearly state that the mediator must be free from favoritism, bias, and prejudice and conduct sessions in an impartial manner. As I have told many classes I’ve taught, I believe mediators make every effort to adhere to this ethical standard, but their effort is not at issue. At issue is what the participants during the mediation perceive.

One of the people I trained as a mediator was born in Germany, immigrated to the United States as a child, and retained her knowledge of the German language, although her speech did not reflect her heritage. In one mediation she noticed that one of the participants spoke with a slight German accent. After the mediation had concluded and an agreement signed as parties were leaving the room she asked that person in German where he had been born. He answered in German. Nothing more was said.

My friend was later distressed to learn that the other party in the mediation had filed to have the court vacate the mediation agreement based on an obvious mediator bias. She called me quite distressed saying there had been no favoritism, but that she only asked where the person had been born. I could only tell her that the critical factor the judge may have acted upon was the appearance of partiality—not her intention.  

The mediator must avoid any conduct that even gives the appearance of partiality because the critical factor in the end may be what the participants perceive to be true. If they believe there is bias, they could question the process itself, as well as the outcome of the mediation.

I’m frequently asked if what is said in mediation is really confidential. To answer that question, we need to first consider the participants and the mediator separately. 

It does happen that a party may agree to mediate without any intention to settle for the only purpose of learning more about the other party’s case. 

Most mediators will ask participants to sign an “Agreement to Mediate” before the session. Typically, these agreements include a statement where the parties agree that all discussed will be strictly confidential. And, mediators will typically reinforce that understanding in their opening statement.

Rest assured that mediators have a long tradition of honoring confidentiality. Even in court-referred scenarios, the mediator does not report to the court what the parties said during the proceedings. In recent years, however, some important exceptions have developed. Mediators now have a duty to report reasonable suspicion of child abuse and/or domestic violence as well as an ethical responsibility to break confidentiality if they suspect a person may be in danger of harm. 

A comprehensive analysis of confidentiality was developed by U. S. Magistrate Judge Wayne D. Brazil in a case where the parties reached an agreement in the early morning after a lengthy mediation session. One party later disavowed the agreement claiming that she had been physically, intellectually and emotionally incapable of giving consent at that time. Both parties wanted the mediator to testify as to the claimant’s capacity to mediate. The mediator assumed that they could not be compelled to testify due to confidentiality. Judge Brazil made it clear that confidentiality in mediation should be thought of as a privilege in which case, if the parties waive confidentiality, the mediator cannot withhold testimony.

If confidentiality is important to one or both parties, I recommend they discuss it openly with their mediator before the sessions begin and act accordingly.